청소년보호법의 인터넷게임 강제종료제에 관한 헌법적 검토 ― 기본권제한입법의 형식적 한계와 관련하여 ―

Abstract

The forced internet games shutdown system for teenagers in Youth Protection Act(YPA) was implemented in Nov. 2011 to prevent teenagers from becoming addicted to or addicted to internet games. Ever since the adoption of the forced shutdown system of YPA, and despite the Constitutional Court's decision on the constitutionality of the forced shutdown system (2011 Hun-Ma 659), there have been constant claims that the forced shutdown system is unconstitutional because it violates the vagueness doctrine and it infringes upon the freedom of individuality of teenagers, the right of parents to nurture their children, and the freedom of internet game makers to perform their jobs. Moreover, the problem of unconstitutionality of the forced shutdown system of the YPA is still maintained and stuck rather than corrected because of the unreasonable and arbitrary decision of the Ministry of Gender, Equality and Family(MOGEF) regarding the scope of internet game excluded from the application of the forced shutdown system by the evaluation of Article 26 (2) and Article 21 (4 ) of the Enforcement Decree of the same Act. The problems of irrationality and self-indulgence in enforcement of forced shutdown system stem from the problems of Article 26 of the YPA. For this reason, the constitutional problems of Article 26 of the YPA should be reviewed from the perspective of the vagueness doctrine, principle of parliamentary retention theory, and the principle of prohibition of comprehensive delegating legislative power as limits in form of the human rights restriction law. Especially, it is should be examined more strictly because the internet game which is subject to the forced shutdown system is a component of the penal code. Article 26 (1) is deemed to be in violation of the vagueness doctrine. Because Article 26 (1) of the YPA, which stipulates the forced shutdown system, declares that all internet games can not be provided uniformly at night time, without specifying any criteria for judgment on the overindulgence or addiction of internet games and whether it is an internet game subject to the forced shutdown system will be determined based on the results of the evaluation of the scope of internet games by the MOGEF in accordance with Article 26 (2). Article 26 (2) stipulates that the MOGEF should evaluate the appropriateness of the scope of the internet games, which are subject to the shutdown system and take measures such as improvement. However, Article 26 (2) delegates to the President with no provisions regarding evaluation standards, methods of evaluation, and composition of professional bodies to formulate and evaluate evaluation. For this reason, Article 26 (2) is considered to be contrary to the principle of prohibition of comprehensive delegating legislative power. It is believed that unlike the Constitutional Court's decision, Article 26 of the YPA can not provide to the people predictability as to whether any internet game will be excluded from the application of the forced shutdown system, and can not prevent the law enforcement authorities from arbitrary interpretation and enforcement of the law.